J-S79044-14

2015 PA Super 41

*Retired Senior Judge assigned to the Superior Court.

MICHAEL RODRIGUEZ,

 Appellant

 v.

KRAVCO SIMON COMPANY D/B/A LEHIGH 

VALLEY MALL and ENVIRONMENTAL 

SERVICE CONCEPTS, LLC,

 Appellees

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 2291 EDA 2014

Appeal from the Order Entered July 10, 2014

in the Court of Common Pleas of Lehigh County,

Civil Division, at No(s): 2013-C-1195

BEFORE: ALLEN, OLSON, and STRASSBURGER,* JJ.

OPINION BY STRASSBURGER, J.: FILED FEBRUARY 20, 2015

Michael Rodriguez (Rodriguez) appeals from the July 10, 2014 order 

which entered summary judgment in favor of Kravco Simon Company, d/b/a 

Lehigh Valley Mall (the Mall), and Environmental Service Concepts, LLC 

(ESC) (Defendants, collectively). We reverse and remand for further 

proceedings consistent with this opinion.

Succinctly, the facts of this case are as follows. On June 6, 2011, 

Rodriguez was walking in the Lehigh Valley Mall when he slipped in a puddle 

of brown liquid and fell, breaking his leg. In his subsequently-filed 

negligence case, Defendants moved for summary judgment. The trial court 

granted Defendants’ motion, determining that Rodriguez failed to come forth 
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with evidence that would allow a jury to conclude that Defendants had actual 

or constructive notice of a dangerous condition.

Rodriguez timely filed a notice of appeal, and presents this Court with 

the following questions, which we have reordered for ease of disposition. 

1. Did the [trial] court err in finding that the dried nature of 

the spill did not create the inference that a sufficient period 

of time had passed for constructive notice to Defendants?

2. Did the [trial] court err in disregarding the Defendants’ 

written admission of failure to prevent the accident?

3. Did the [trial] court err in disregarding the Defendants’ 

loss of important evidence as a factor to be weighed in 

[deciding] Defendants’ motion for summary judgment?

Rodriguez’s Brief at 4 (suggested answers and unnecessary capitalization 

omitted). 

We consider Rodriguez’s questions mindful of our standard of review.

Our standard of review of an order granting summary judgment 

requires us to determine whether the trial court abused its 

discretion or committed an error of law[,] and our scope of 

review is plenary. We view the record in the light most 

favorable to the nonmoving party, and all doubts as to the 

existence of a genuine issue of material fact must be resolved 

against the moving party. Only where there is no genuine issue 

as to any material fact and it is clear that the moving party is 

entitled to a judgment as a matter of law will summary 

judgment be entered.

* * *

... Where the non-moving party bears the burden of proof on an 

issue, he may not merely rely on his pleadings or answers in 

order to survive summary judgment. Further, failure of a nonmoving party to adduce sufficient evidence on an issue essential 
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to his case and on which he bears the burden of proof 

establishes the entitlement of the moving party to judgment as a 

matter of law.

Sokolsky v. Eidelman, 93 A.3d 858, 861-62 (Pa. Super. 2014) (quotation 

marks and citations omitted).

The parties agree that Rodriguez was at the Lehigh Valley Mall as an 

invitee, and thus the following principles of law are applicable. 

A possessor of land is subject to liability for physical harm 

caused to his invitees by a condition on the land if, but only if, 

he

(a) knows or by the exercise of reasonable care would 

discover the condition, and should realize that it involves 

an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the 

danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them 

against the danger.

RESTATEMENT (2d) OF TORTS § 343. This Court has explained the import of 

this section as follows:

the mere existence of a harmful condition in a public place of 

business, or the mere happening of an accident due to such a 

condition is neither, in and of itself, evidence of a breach of the 

proprietor’s duty of care to his invitees, nor raises a presumption 

of negligence. In order to recover damages in a slip and fall 

case such as this, the invitee must present evidence which 

proves that the store owner deviated in some way from his duty 

of reasonable care under the existing circumstances. This 

evidence must show that the proprietor knew, or in the exercise 

of reasonable care should have known, of the existence of the 

harmful condition. Section 343 also requires the invitee to prove 

either that the store owner helped to create the harmful 
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condition, or that it had actual or constructive notice of the 

condition.

Zito v. Merit Outlet Stores, 647 A.2d 573, 575 (Pa. Super. 1994) (internal 

citations and quotation marks omitted).1

Rodriguez first argues that the testimony regarding the characteristics 

of the puddle in which he slipped satisfied his burden of coming forth with 

evidence of Defendants’ constructive knowledge of the dangerous condition. 

Rodriguez’s Brief at 14-17. The trial court rejected this argument as follows.

In this case, [Rodriguez] argues that the liquid substance 

on the floor remained on the floor for a period of time long 

enough for edges of the liquid to become dry and sticky. 

[Rodriguez] further argues that such evidence establishes 

constructive notice of the dangerous condition on behalf of 

Defendants.

[Rodriguez] testified regarding the substance as follows:

And also, I want to say like, when I fell, I was like in 

the main - in the puddle of the dark liquid. And 

when I put my hands down, I seen like around the 

edges of the puddle or whatever, it was like -- it was 

like drying up. The liquid was like drying up, 

basically, ‘cause my hand wasn’t wet or nothing. 

 

1 The author of this opinion has for decades noted his disagreement with 

Pennsylvania law in this area. See Goodman v. Chester Downs and 

Marina, LLC, 39 A.3d 371, 372 (Pa. Super. 2012) (Strassburger, J. 

concurring) (citing Landis v. Giant Eagle, Inc., 142 P.L.J. 263 (1994), and 

Duff v. Wal-Mart Stores, Inc., 2002 WL 34098113 (Pa. Com. Pl. 2002)). I 

write this specially concurring footnote to express my continued belief that, 

“[b]etween these two [potentially] innocent parties, fairness should require 

the store to pay as a cost of operating its business.” Id. at 372 (quoting 

Duff). See also Commonwealth v. King, 57 A.3d 607, 633 n.1 (Pa. 

2012) (Saylor, J. concurring) (“Special concurrences such as this are 

somewhat unusual but not without precedent.”). 
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That’s why I first, when I fell, I didn't understand 

how I fell or why I fell. You understand what I’m 

saying? And I looked, I seen I was in a puddle of the 

-- the dark brown liquid.

[Rodriguez] further testified:

Q Was the substance sticky?

A Like I said, around the edges, it was. But like 

the main puddle, it wasn’t, no, ‘cause there 

was like -- say this is the puddle right here, 

and like around here is like the edges of the 

puddle. That was like dry with or -- or sticking 

up or whatever. But this right here was liquid 

(indicating). 

Q Do you know how long the liquid was on the 

floor --

A No, ma’am.

Q before you fell?

A No way -- no way I can know. I assumed 

afterwards, like I said, when I’m on the floor, 

and I have my hands, I don’t have no liquid on 

my hands, and like I said around the edges 

was dry. So that’s -- you know, if it’s dry, then 

I assume it’s been there for a little while, you 

know.

[Rodriguez] also offered the Affidavits of his fiancée and 

her brother which similarly verify that [Rodriguez] fell in a brown 

liquid that had dried around the edges. 

* * *

Viewing the record in the light most favorable to 

[Rodriguez] as the nonmoving party, we find that [Rodriguez] 

has failed to present any evidence regarding how long the brown 

liquid existed on the floor. Although [Rodriguez’s] evidence 
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allows one to infer that the brown liquid was on the floor long 

enough for the edges to become dry and sticky, it does not allow 

an inference as to the length of time the liquid was on the floor 

to determine if the dangerous condition existed long enough to 

infer constructive notice on Defendants. Without such evidence, 

there is nothing that would sufficiently enable a jury to impute 

constructive notice on Defendants.

Trial Court Opinion, 7/10/2014, at 4-7 (footnotes and citations omitted).

We agree with the trial court. Without evidence of how long it takes 

the liquid in question to become sticky or dry, the jury would be unable to 

determine whether the spill was present for a sufficiently long time to 

warrant a finding of constructive notice. The cases cited by Rodriquez, 

which are primarily cases from other jurisdictions, do not convince us 

otherwise. See Rodriguez’s Brief at 14-17 (citing cases from federal courts 

and Wyoming). 

Rodriguez next argues that Defendants’ “compelling admission of 

liability” warranted denial of their motion for summary judgment. 

Rodriguez’s Brief at 20. Rodriguez’s argument is based upon the injury 

report prepared on a Simon Property Group form, which contains the 

following:

Injury Details

Did the public safety officer 

witness the accident?

No

Was the scene inspected 

immediately following the 

accident?

Yes
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Date/Time of inspection 6/6/2011 7:02:00 PM

Injury scene surface condition Slippery Due To Liquid 

On Floor

Defect or obstruction in/on 

surface

Yes

Describe obstruction Liquid On Floor

Action taken to prevent injury None

Outside temperature 70’s

Rodriguez’s Response to Defendants’ Motion for Summary Judgment, 

4/28/2014, at Exhibit D (punctuation added). Rodriguez maintains that this 

“admission” precludes the entry of summary judgment in favor of 

Defendants.

Rodriguez’s argument fails. “It is unquestionable that a store owner 

owes a duty of care to the patrons of the store. However, the owner of the 

store is not an insurer of the safety of its customers.” Myers v. Penn 

Traffic Co., 606 A.2d 926, 928 (Pa. Super. 1992). Defendants were not 

obligated to follow Rodriguez around the mall, prepared to leap in and save 

him should some unexpected danger present itself. Rather, under the law 

discussed above, Defendants had a duty to protect Rodriguez from dangers 

of which they knew or would have known upon reasonable monitoring of the 

premises. As the trial court aptly noted, “no action was necessary if 

Defendants did not know about the spill or if the spill did not exist long 

enough to impute Defendants knowledge of it.” Trial Court Opinion, 
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7/10/2014, at 6 n.2. This document contains no admission of liability. 

Thus, Rodriguez’s second issue warrants no relief.

Finally, Rodriguez argues that the potential for an adverse inference 

from Defendants’ spoliation of evidence warranted denial of Defendants’ 

motion. Rodriguez’s Brief at 17-19. The trial court discussed Rodriguez’s 

spoliation contentions and its rejection of them as follows.

[I]n an attempt to support the constructive notice claim, 

[Rodriguez] relies on an asserted adverse inference regarding 

maintenance records that were not produced by Defendants. 

[Rodriguez] argues that in response to a discovery request, 

Defendants produced maintenance records for the Lehigh Valley 

Mall for the month of June 2011; missing from the records is the 

June 6, 2011, paperwork. [Rodriguez] argues that the failure to 

preserve a maintenance record that was clearly material to this 

action entitles [Rodriguez] to an appropriate inference to review 

all evidence in as strong a light as possible against Defendants.

[Rodriguez] has not raised this issue with a motion for 

spoliation sanctions to allow this court to review the elements of 

spoliation and make a determination regarding any adverse 

inference based on the missing discovery.1 In reviewing this 

motion for summary judgment, we are limited to the record 

before us, and said record does not include an adverse inference 

regarding the lack of maintenance records for the date in 

question.

______

1 To determine the appropriate sanction for spoliation, the 

trial court must weigh three factors:

(1) the degree of fault of the party who altered 

or destroyed the evidence; (2) the degree of 

prejudice suffered by the opposing party; and 

(3) whether there is a lesser sanction that will 

avoid substantial unfairness to the opposing 

party and, where the offending party is 
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seriously at fault, will serve to deter such 

conduct by others in the future.

PTSI, Inc. v. Haley, 71 A.3d 304, 316 (Pa. Super. 2013).

Trial Court Opinion, 7/10/2014, at 6. 

Neither the trial court nor Defendants cite any authority for the 

proposition that spoliation sanctions must be obtained, via prior motion and 

order, in order for the issue to affect the summary judgment analysis. On 

the other hand, given the well-established standard for consideration of 

summary judgment motions, we hold that the open question about 

spoliation precludes the entry of summary judgment in favor of Defendants. 

Since the early 17th century, courts have admitted evidence 

tending to show that a party destroyed evidence relevant to the 

dispute being litigated. Such evidence permitted an inference, 

the spoliation inference, that the destroyed evidence would have 

been unfavorable to the position of the offending party. ... [T]he 

evidentiary rationale [for the spoliation inference] is nothing 

more than the common sense observation that a party who has 

notice that [evidence] is relevant to litigation and who proceeds 

to destroy [evidence] is more likely to have been threatened by 

[that evidence] than is a party in the same position who does 

not destroy the document. 

Mount Olivet Tabernacle Church v. Edwin L. Wiegand Div., 781 A.2d 

1263, 1269 (Pa. Super. 2001) (internal citations and quotation marks 

omitted) (quoting Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 78-

79 (3rd Cir. 1994)). “[T]he spoliation doctrine is broadly applicable to cases 

where relevant evidence has been lost or destroyed.” Id. at 1269 (internal 

quotation marks omitted). 
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Rodriquez, referencing deposition testimony and exhibits of record, 

showed that the Mall contracted out housekeeping duties to ESC, whose 

employees were to perform functions, including sweeping and spot mopping 

the floors, on an hourly basis. Memorandum of Law in Response to 

Defendants’ Motion for Summary Judgment, 4/28/2014, at 3-4 (pages 

unnumbered) (citing Exhibits B and C). On a form entitled Sweep Sheet & 

Spill Log, ESC employees initialed to document the completion of each task, 

each hour. Id. at 4 (citing Exhibit F). Although ESC’s representative 

testified that he collected the forms from the employees each day and sent 

them to ESC’s corporate office each week, the record for the day of the 

incident is missing. Id. at 4-5 (citing Exhibit C). 

When considering a motion for summary judgment, 

all doubts as to the existence of a genuine issue of material fact 

must be resolved against the moving party. Only where there is 

no genuine issue as to any material fact and it is clear that the 

moving party is entitled to a judgment as a matter of law will 

summary judgment be entered.

Hogg Const., Inc. v. Yorktowne Medical Centre, L.P., 78 A.3d 1152, 

1154 (Pa. Super. 2013) (quoting Brubacher Excavating, Inc. v. 

Commerce Bank/Harrisburg, N.A., 995 A.2d 362, 365 (Pa. Super. 

2010)). 

Here, Rodriguez has come forth with evidence that at least casts a 

doubt as to the existence of a question of material fact. With the open 
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possibility that the ESC employees failed to check the floors as scheduled 

prior to Rodriguez’s fall, it is not clear that Defendants’ are entitled to 

judgment as a matter of law. See, e.g., RESTATEMENT (2d) OF TORTS § 343 

cmt. B (“To the invitee the possessor owes not only [the duty to disclose 

known dangers], but also the additional duty to exercise reasonable 

affirmative care to see that the premises are safe for the reception of the 

visitor, or at least to ascertain the condition of the land....”). Accordingly, 

the trial court erred in granting Defendants’ motion for summary judgment 

on this record.

Order reversed. Case remanded for further proceedings consistent 

with this opinion. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/20/2015